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An unjust trial by media

The Bush administration's "secret prison" strategy has been unravelling fast, not least at the flagship prison, Guantanamo Bay. The British government's recent announcement that it will accept five UK residents back home, thus hastening the prison's closure, was welcome news.

Guantanamo has become a nightmare for President Bush, as well as the prisoners held there. More than 360 remain on the island, 80 of whom were cleared for release many months ago. Why are the "cleared" prisoners still there? In part, because many face persecution if returned to their native countries. As the state department struggles to find places where the prisoners could be sent, its work is complicated by a continuing insistence by the Department of Defense (DoD) that the Guantanamo prisoners are the "worst of the worst" terrorists in the world. Why would any government want to import them?

For five years, most countries were happy to scold the US for disrespecting the rule of law, but less keen to support a solution. So the British volte-face was commendable.

Soon after the announcement, though, the Foreign Office was embarrassed by the Americans, the very folk they were trying to help. Bush's half-hearted insistence that Guantanamo should close masks deep divisions in his team. Sandra Hodgkinson, deputy assistant secretary of defense for detainee affairs, held a press conference at which she welcomed the British offer of assistance and even asked Britain to take more prisoners off American hands. However, still intent on denying that any mistake had been made in Guantanamo, she suggested that all five British residents were exceptionally dangerous terrorists.

If the Bush administration seems incapable of toeing a consistent line, the media is even worse. For many months, the British press has complained that the prisoners should have fair trials rather than the fiercely criticised "Combatant Status Review Tribunals" - kangaroo courts that make sweeping allegations and deny prisoners a meaningful opportunity to respond.

But now swathes of the British press unquestioningly printed Hodgkinson's allegations without allowing the prisoners the barest opportunity to reply.

What would a fair tribunal make of the DoD allegations? Consider Jamil el-Banna, whose wife and five small British children are awaiting his return to London. Hodgkinson said, and the media printed, that he had "a long-term association" with Abu Musab al-Zarqawi, the Jordanian terrorist infamous for decapitating prisoners in Iraq, who was "behind the murder of Ken Bigley, the British engineer".

Jamil knew Zarqawi as a youth from the same area in Jordan. But his only attempt to contact him in recent decades was a letter he wrote from Guantanamo, through his lawyers, telling Zarqawi his barbaric actions were contrary to Islam, and that Bigley should be freed. Minimal investigation might also have prompted the press to point out that Jamil has been cleared by Hodgkinson's military colleagues, who found him to be no threat to anyone.

Or take the case of Omar Deghayes, the Libyan refugee who lived in Brighton for 20 years. Hodgkinson said Omar is a "jihadi veteran" of the Bosnian war. The US military previously claimed he was a Chechen jihadist shown on videotape brandishing an AK-47. The man on film actually turned out to be Abu Walid, a Chechen rebel who died in 2004.

Not satisfied with convicting the prisoners in absentia, the media chastised the British government for the U-turn in its policy towards the UK residents. Yet surely someone who is driving in the wrong direction would do well to turn around. The media, on the other hand, made a U-turn away from fairness. If there are allegations against them, the Guantanamo prisoners will be glad to answer them in a proper court. Trial by media is little better, really, than the tribunals that have received such justified criticism.

Clive Stafford Smith is legal director of Reprieve, a UK charity that provides front-line investigation and legal representation to prisoners denied justice by powerful governments across the world. His book "Bad Men: Guantanamo Bay and the Secret Prisons", is published by Weidenfeld & Nicolson. He writes this column monthly. Contact Reprieve at info@reprieve.org.uk or at PO Box 52742, London EC4P 4WS (tel: 020 7353 4640)

Clive Stafford Smith is legal director of the charity Reprieve and has spent more than 20 years representing prisoners on Death Row in the United States. More recently he has represented many of the prisoners in Guantanamo Bay.